Law 12 Unit
Introduction
There are many types of
criminal offences in Canada.
Generally, the less serious
ones are dealt with in a
different way than the more
serious ones.
This unit explores how the
seriousness of the offence
affects the way in which the
police can investigate, and the
crown can prosecute.
It will also examine specific
offences against people,
property, and morality...
Expanding on what we did
last unit.
Classification of Offences
Criminal offences in Canada are
placed into one of three possible
categories:
1. Summary Conviction
Offences
Least serious, and are prosecuted
in a more summary and
simplified way.
2. Indictable Offences
More serious and are prosecuted
in more detail.
Classification of Offences
3. Hybrid Offences
(or Dual Procedure Offences) may be tried as either Summary
or Indictable offences.
These are generally seen as serious in some circumstances, and
less serious in others. The circumstances around the offences
determines how it is tried.
For example: The criminal
record of the accused
and the amount of violence
in a crime would
determine how it
is tried.
Classification of Offences
Grouping the least serious offences together differentiates them
from the more serious ones. It’s easier for all involved.
More importantly, this classification system dictates the
procedures that must be followed through the system, all the
way from original arrest
to final sentencing.
The way an officer can
arrest a person is tied
to this system.
Classification of Offences
The level of court the case will be
heard in, and whether the
accused has a choice in the type
of trial, are all tied into the
classifications as well.
Because we recognize that
summary conviction offences are
a lot less serious than indictable
ones, the maximum penalties for
both are quite different.
This also affects the appeal process
and which ones get priority.
Supreme Court
Summary Conviction Offences
Typical examples would be
things like:
- Causing a disturbance in a
public place.
- Loitering on someone’s
property without
permission.
- Being in an illegal gambling
house.
- Driving a car without the
owner’s permission.
Summary Conviction Offences
Generally, trials for summary offences cannot proceed if more
than 6 months have elapsed between the alleged act and the
commencement of prosecution for that crime.
When police are investigating them, they must observe the
actual crime taking place
in order to make an arrest.
It is not enough to have a
person reported as
loitering and then arrest
them after the fact in,
say, a restaurant.
(or running around naked
and be found later, clothed)
Summary Conviction Offences
Usually summary offences can only be tried in a provincial court,
before a judge. Jury trials are not allowed for less serious
offences.
The maximum penalty for summary offences is a fine of around
$2000 and/or
imprisonment for
6 months.
However, 6 months in jail
for loitering on
Mrs. Smith’s lawn
seems a little excessive.
Indictable Conviction Offences
Typical examples of indictable
offences include:
- Murder
- Arson
- Making and using
counterfeit money.
- Forgery
There is no limit on the
amount of time that can
pass between the offense
and its prosecution. People have been tried 50 years
after the fact.
Indictable Conviction Offences
However... Once the accused has been charged with an
indictable offence, the trial must follow within a reasonable
time period (usually six months).
Which is why police
and investigators make
sure they have all the
evidence for a conviction
before they make the
arrest. Otherwise it can
fail due to time issues, or
poor evidence can allow
the criminal to walk free.
Keep Criminals Behind Bars!!
Indictable Conviction Offences
Police also have more freedom and broader powers of search
and arrest when investigating these offences.
It makes sense to draw
your gun and call out
SWAT for a cold-blooded
murderer. But, bringing
out the assault team for a
jaywalker would be a little
over the top.
Generally, there are
three types of trials
for indictable offences:
Indictable Conviction Offences
- Trial by provincial
court judge
- Trial by a superior
court judge without
a jury.
- Trial by a superior
court judge with
a jury.
For some indictable offences, the required type of trial is stated
in the criminal code.
For example, where an offence is punishable by more than 5
years in prison, the accused may be required to have a trial
with both judge and jury.
Hybrid Offences
Hybrid can fall under either of the two previous categories.
The category it falls under is determined as the charge is laid
out in court.
Until then, police are allowed to treat it as an indictable
offense.
Why is this to their benefit? .
Because it gives them greater
powers in terms of arrest (call
SWAT!) and does not require
that they saw the crime happen
to make an arrest.
Hybrid Offences
Examples of hybrid offences include:
- Theft and Fraud of items with a value of under $1000
- Mischief (vandalism etc)
- Calling in a false fire alarm
or other threat.
- Attempting to, or conspiring
to, commit an offence.
The crown considers many
factors when determining
the classification...
Hybrid Offences
For example, if the accused has no criminal record, or a very
minor one, the Crown may decide to proceed under a
summary conviction offence.
If the accused employed violence or weapons, then the Crown
may proceed under an indictable offence.
A defence lawyer will
argue for a summary
ruling, as it increases
the accused’s chances
a fair bit.
Offences in the Criminal Code
The criminal code is a federal statute, and so the definitions and
procedures are the same across Canada.
The code contains descriptions of most of the things we
consider criminal in Canada. The other offences are found in
other federal and in some
provincial statutes.
These are termed
quasi-criminal law,
because only the
federal government can
legislate criminal law
under the Constitution.
Offences in the Criminal Code
The three main categories of crime
in the criminal code are:
- Offences against People
- Offences against Property
- Offences against Morality
Offences in the Criminal Code
Offences against People
This category includes
violent crimes where
people are threatened,
endangered, hurt, or
killed.
These account for just over
10% of all the crimes
reported yearly.
The number of violent
crimes has been rising
steadily in recent years
however.
Offences in the Criminal Code
Offences against People
This category includes
violent crimes where
people are threatened,
endangered, hurt, or
killed.
These account for just over
10% of all the crimes
reported yearly.
The number of violent
crimes has been rising
steadily in recent years
however.
Offences in the Criminal Code
But there is debate over this
issue. Are more crimes being
committed, or are more crimes
just being reported?
Examples of violent crime
include murder, attempted
murder, assault, abduction,
robbery, and sexual assault.
Several factors seem to affect the
rates of violent crime in
various parts of Canada.
Offences in the Criminal Code
See if you can pick the categories where most crime happens
(per person in population, not total numbers). .....
Smaller Towns vs.
Residential Areas vs.
Industrial Areas vs. Commercial Areas
More Rural vs.
BC vs.
Prairies vs.
Big Cities
More Urban
Ontario vs.
Maritimes vs. Yukon
Caucasian vs. Asian vs. African vs. Aboriginal
Offences in the Criminal Code
Some reasons for those facts:
- There is more unemployment and lack of other things to do in
the Yukon. Breeds discontent.
- Aboriginals see their culture
fading, and feel they have
few good viable options.
- Small communities have
people who know each
other well, and are less
likely to be violent.
- Industrial areas not as
populated or policed
(especially at night)
Indictable Offences - Homicide
There are two main types of Homicide:
1. A Culpable Homicide occurs when someone causes the
death of another person, as in murder, manslaughter, or
infanticide...
...If there was an intent
to cause death, or such
recklessness that the
actions of the accused
were likely to cause
another person’s death.
Indictable Offences - Homicide
2. A Nonculpable Homicide occurs as the result of
accidental circumstances where no intent to cause harm
or death, and no criminal recklessness exists.
Murder is divided between the categories of
First-Degree Murder and
Second-Degree Murder.
A First-Degree Murder
exists when...
Indictable Offences - Homicide
- The murder is planned and
deliberate.
- One person hires or
contracts another person
to do the murder.
- The person who is
murdered is an on-duty
police officer, sheriff,
corrections officer, or
other person responsible
for maintaining and
preserving the public
peace.
Indictable Offences - Homicide
- The person is murdered while
the accused is committing
another serious offence.
ie: Hijacking an aircraft, sexual
assault (with or without a
weapon), threats to a third
party, causing bodily harm,
aggravated sexual assault,
kidnapping, hostage taking, or
forcible confinement.
In these cases, the murder
does not have to be planned
and deliberate.
Terrorists take over the Japanese
Embassy in Peru. After weeks of
standoff, the special forces stage
a raid and rescue effort. All
Terrorists killed. One soldier and
one hostage killed.
Indictable Offences - Homicide
HOMICIDE
NONCULPABLE
MURDER
CULPABLE
MANSLAUGHTER
FIRST DEGREE
INFANTICIDE
SECOND DEGREE
Indictable Offences - Homicide
Any murder that does not fit one
of the first degree murder
descriptions is a second degree
murder.
The main reason for having
these two classifications is to
set the date at which a person
convicted of murder can apply
for parole.
The minimum sentence for a
person convicted for first or
second degree murder is life in
prison.
Parole, however, differs....
Indictable Offences - Homicide
Under a first degree murder
charge, the convicted person
is generally not eligible for
parole for 25 years. This means
they will remain in prison for
at least that period before they
can apply for parole, or be
released early due to good
behaviour, rehabilitation, etc.
The only exception is where a
panel of 3 judges hearing an
appeal recommend that the
parole be dropped to 15 years.
Indictable Offences - Homicide
Under a second degree
murder charge, the
convicted person can apply
for parole after serving a
minimum of 10 years in
prison.
Here also, the judge may make
a recommendation for a
change. The minimum could
be raised to 25 years, based
on the nature of the crime,
the character of the accused,
the lack of remorse, and the
need to protect public safety.
NO REMORSE
Indictable Offences - Homicide
In either case, a person who is released on parole, under a
conviction or murder, remains under parole supervision for
the rest of their life.
They need to ask special
permission to leave
the province or country,
and may be denied at
the border or through
an international flight.
It does haunt
you for the rest of
your life.
Indictable Offences - Homicide
A person may be charged with murder if the murder occurs
when they are committing another offence... even if the
murder was entirely unplanned and unintentional.
Ie: a person sabotages a
boat by placing a bomb
under it. If it goes off and
kills someone (even if
the bomber thought it
was empty and nobody
was around) the person
will often be charged with
first degree murder.
Indictable Offences - Homicide
The responsibility we all have
for the safety of others is a
key issue. The dangerous
situations created by
unlawful acts mean a greater
level of responsibility for the
people who may,
unintentionally or
intentionally, be affected by
our actions.
“I didn’t mean to...” is not a
valid defence.
Homicide – Case Study
Droste v. The Queen (1984), 10 C.C.C. (3d) 404 (S.C.C.)
Droste wanted to kill his wife, because he was having an affair
with another woman. He arranged for an insurance policy in
the event of his wife’s death, and told his co-workers of his
intentions. The plan was to have the car burst into flames
during an accident, and have his wife tragically perish in the
fire.
What could go wrong?
Homicide – Case Study
Droste v. The Queen (1984), 10 C.C.C. (3d) 404 (S.C.C.)
Before leaving home with his wife and two children, Droste
was seen cleaning the car seats with gasoline. Later, as they
were travelling, a fire broke out. Mrs. Droste testified that
her husband tried to hit
her on the head with a
screwdriver. She grabbed
the steering wheel, and
the car hit a railing...
Homicide – Case Study
Droste v. The Queen (1984), 10 C.C.C. (3d) 404 (S.C.C.)
The two parents managed to get out of the car, but the two
small children in the back died from smoke inhalation.
The trial judge told the jury
that if they were satisfied,
beyond a reasonable doubt,
that Droste intended to kill
his wife in a deliberate and
planned manner......
Homicide – Case Study
Droste v. The Queen (1984), 10 C.C.C. (3d) 404 (S.C.C.)
...and that in carrying out his plans he accidently caused the
death of his children, then the resulting deaths constituted
first degree murder.
The jury convicted Droste, and
both the Ontario Court of
Appeal and Supreme Court
upheld the conviction.
This incident illustrates
“Transferred Intent.”
Indictable Offences - Manslaughter
The charge of manslaughter is
usually laid against a person
who kills another while
committing an unlawful act
not listed in section 230 of the
criminal code (the acts
covered earlier).
For example, a drunk driver that
kills someone may be charged
with manslaughter. The
“unlawful act” was the driving
while impaired. The death was
not intended.
A drunk driver plows into a bike
race near the USA-Mexico border.
He kills one and seriously injures
several others. Police barely
prevent his lynching by an angry
mob.
Indictable Offences - Manslaughter
A manslaughter charge may also come from an instance where a
person is criminally negligent and causes the death of another
person.
In this case, the charge
against the accused
would be either criminal
negligence or
manslaughter. There
cannot be two charges,
leading to two
convictions, based
on the same incident.
Indictable Offences - Manslaughter
A murder charge may sometimes
be reduced to manslaughter
because the accused was, for
example, provoked at the time
they killed someone.
Under certain circumstances,
the justice system recognizes
that people can be suddenly
provoked into violent actions.
Provocation is defined in
section 232(2) of the criminal
code of Canada. It reads as
follows....
Indictable Offences - Manslaughter
“... Wrongful act or an insult that is of such a nature as to be
sufficient to deprive an ordinary person of the power of selfcontrol.”
In order for this defence to succeed, one must prove that an
“ordinary person” would respond to the insult or provocation in
the same way that
the accused did.
He Provoked Me…
Ordinary being defined as
normal temperament
and self-control, and
not drunk/high.
Indictable Offences - Manslaughter
If this can be proven, then a second question has to be asked:
Did the accused act in the heat of the moment, or did they
have the opportunity to cool their emotions?
If they were acting in the heat of the moment, then it will
likely be manslaughter.
If they had a chance to
cool off, but decided
instead to remain angry
and then kill the victim,
it will likely be a murder
charge.
Indictable Offences - Manslaughter
If this can be proven, then a second question has to be asked:
Did the accused act in the heat of the moment, or did they
have the opportunity to cool their emotions?
If they were acting in the heat of the moment, then it will
likely be manslaughter.
If they had a chance to
cool off, but decided
instead to remain angry
and then kill the victim,
it will likely be a murder
charge.
Indictable Offences - Manslaughter
There are also instances where the accused may not be able
to form the intent to commit murder, and yet they kill
someone.
They may be too drunk, for example. This is a tricky thing
to determine.
Regardless, sentencing
can still be very high
... up to life in prison.
Indictable Offences – Suicide / Aiding
Under section 241 of the Criminal Code, it is an offense to
counsel, aid, or encourage any person to commit suicide. This
offence has a maximum prison sentence of 14 years.
Until 1972, it was also a
criminal offence to
attempt suicide. However,
it became recognized
that a person so
depressed so as to
attempt to end their
own life, needed
psychiatric help, not
imprisonment.
NW Cop Cancer / Van Cop Gambling
Indictable Offences – Suicide / Aiding
The offence of counselling or aiding in suicide has been hotly
debated in many countries, including Canada.
Generally it centers around people
who are terminally ill and who
wish help to end their lives
because of pain and suffering.
The case of Sue Rodriguez,
seen earlier this year,
illustrated that issue well...
As did the murder
conviction of Robert
Latimer.
Pic a link to clip. 3 min
Indictable Offences – Assault
The legal definition of assault is
very broad. It includes
intentionally using force
against another person,
threatening someone, and
displaying a weapon when
begging or interfering with
another person’s movements.
By this definition, an action like
pushing someone, shaking a
fist at another person, or
threatening him/her is an
example of assault. Really?
Indictable Offences – Assault
However, intent is a necessary component of assault. If the
action is accidental, careless, or the result of a reflex action,
it’s not assault.
For example, accidently bumping
into another person in the hallway
isn’t assault... Unless there was
malicious intent.
If there was no intent to harm
another, the assault is
considered accidental. There
is an exception though...
Indictable Offences – Assault
However, intent is a necessary component of assault. If the
action is accidental, careless, or the result of a reflex action,
it’s not assault.
For example, accidently bumping
into another person in the hallway
isn’t assault... Unless there was
malicious intent.
If there was no intent to harm
another, the assault is
considered accidental. There
is an exception though...
Indictable Offences – Assault
However, intent is a necessary component of assault. If the
action is accidental, careless, or the result of a reflex action,
it’s not assault.
For example, accidently bumping
into another person in the hallway
isn’t assault... Unless there was
malicious intent.
If there was no intent to harm
another, the assault is
considered accidental. There
is an exception though...
Indictable Offences – Assault
The exception comes when a
person is so negligent or
reckless in caring for the safety
of others that he/she harms
another. In this instance, there
may be a charge of criminal
negligence.
For example, parents who fail to
seek medical help for a
seriously ill child may be
charged with criminal
negligence.
Ie: Jehovah’s Witnesses and
blood transfusions.
Christmas in Children’s Hospital,
Maryland USA
Indictable Offences – Assault
There may be situations in which two people agree to an
action that would otherwise be considered an assault. If
two friends meet and pound each other on the back, there
is no assault... Provided both agree to this sort of greeting.
If an accused person
states they believed
there was consent, it
is up to the Crown
to prove that there
wasn’t, on the part
of the “victim.”
Indictable Offences – Assault
Consent must be given freely. It
cannot be by force, fraudulent
means, or because the accused
exercised some authority over
the victim. (ie: A father being
too roughly ‘affectionate’ with
a child).
In addition, a person has to be
aware of the risks before
consent is said to be given.
“Can I hit you on the head with
this metal bat? It won’t
hurt...much.”
Larger version on next page…
Indictable Offences – Assault
In addition to this basic definition, there are two more serious
levels of this crime in the Criminal Code.
Assault causing bodily harm is defined as hurting or injuring
a complainant in a manner that has serious consequences for
their health or comfort.
This would also
include the use of a
weapon.
The maximum
sentence for this
is ten years in prison.
Indictable Offences – Assault
Aggravated Assault is the most
serious level, and is defined as
wounding, maiming,
disfiguring, or endangering
the life of the complainant.
Even if the victim agreed to
the assault, the accused may
still be convicted.
Because of the serious
consequences of this type of
assault (“Look Ma, no legs”)
the maximum penalty for this
is 14 years in prison. (Is that
enough?)
Indictable Offences – Assault
Another form of assault is
torture. This is defined as any
act or omission that causes
severe mental or physical
suffering in another person.
This section differentiates
between people who assault
for their own purposes, and
those who do so in an official
capacity.
For example, a police officer,
soldier, or someone else
directed to commit torture.
Indictable Offences – Assault
It also applies in cases where the
person involved does so outside
of Canada’s jurisdiction.
For example, Pte. Kyle Brown was
convicted in 1994 for
manslaughter and torture of a
Somali teen who was under the
custody of the Canadian Forces
in Somalia. He killed two others
as they tried to flee.
A senior officer attempted suicide,
and Canadian Airborne was
disbanded as a result of the
inquest. Brown got 5 years in
prison.
Indictable Offences – Sexual Assault
Sexual Assault was once called
“Rape” in the criminal code, but
in 1982 is was rewritten to
address several issues that had
been hotly debated in Canada.
The current law recognizes that
the victim may be either male or
female, and that the assault can
be committed by a person of the
same sex as the victim. It also
recognizes that a spouse can
commit this offense (spousal
rape is a fairly new concept in
law).
Indictable Offences – Sexual Assault
Additionally, if the victim did not
resist the assault... or submitted
to it due to threats of force,
actual force, fraud, or exercise of
authority, the complainant's
“consent” to the assault cannot
be used as a defence.
Ie:
- Parent to child
- Teacher to student
- Police officer / Prison Guard
- Boss to employee
Chinese woman raped by
prison guards.
Indictable Offences – Sexual Assault
There are now three levels of
sexual assault as defined by the
criminal code, each becoming
more serious in nature.
Several aspects are considered
when deciding what category
to place an offence in:
1. Nature of the contact
2. Which parts of the body were
touched
3. Situation in which it took place
4. Circumstances and conduct
that accompanied it.
5. Level of violence used.
Indictable Offences – Sexual Assault
The first level of sexual assault is
defined by the general
definition of assault in section
265 of the criminal code.
It is most often described as an
uninvited and non-consensual
touch of a sexual nature.
An example of a first level assault
is molestation, which is a hybrid
offence.
Molest (v) (mə-lěst‘)
1. To disturb, interfere with, or
annoy.
2. To subject to unwanted or
improper sexual activity.
3. To make sexual advances to.
On September 27th, 2006, a 53-year-old man
walked into Platte Canyon High School, student
population less than 500. Before lunch, he took
over a classroom, methodically holding female
students and releasing others. Over the course of
a few hours, he molested the female hostages,
killed one, and then took his own life.
Also Italian Men and the law change. (pat, pat)
Indictable Offences – Sexual Assault
The second level of sexual assault is defined by section 272 of
the criminal code...
272. Every one who, in committing a sexual assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof,
(b) Threatens to cause bodily harm to a person other than the
complainant,
(c) Causes bodily harm
to the complainant,
(d) Is a party to the offense
with another person,
is guilty of an indictable offense
and subject to imprisonment
for a term not exceeding
14 years.
Indictable Offences – Sexual Assault
The emphasis is on the use of
weapons, threats, and violence.
Since this section does not
include the words “with intent” or
“knowingly,” it is a general intent
offence.
The third, and most serious,
level is termed aggravated
sexual assault:
273. (1) Every one commits an
aggravated sexual assault who, in
committing a sexual assault, wounds,
maims, disfigures or endangers
the life of the complainant.
Indictable Offences – Sexual Assault
This definition closely parallels the
most serious definition of assault,
except that some element of a
sexual nature is present. The
maximum penalty for this last
level is life imprisonment.
This level of sexual assault is most
often seen in wartime, where
enemy troops rape and torture
local populations. (ie: The
Japanese rape of Nanking in
WW2, or the English troops
during the 100 years war)
Offences Against Property
Offences against property include several types of crimes, some of the
most common being theft, robbery, mischief, and fraud.
There are many other ways
of interfering with the
property of others.
For example,
taking and using
another person’s ideas,
words, or images is a
kind of theft.
(Intellectual property)
In this section, we’ll
examine the most
common offences
against property, and
the rules that protect
it from illegal use.
Offences Against Property - Theft
Theft is by far the most common criminal offence in Canada. In
response, many neighbourhoods have established a
“neighbourhood watch” program.
Additionally, people use alarms, security guards, dogs, and
fencing in their residential, commercial, and industrial areas
to prevent theft.
The crime of theft
is defined briefly
as taking or using
property that
belongs to another
person.
Offences Against Property - Theft
The criminal code defines it as follows:
322 (1) Every one commits theft who fraudulently and without colour of right
takes, or fraudulently and without colour of right converts to his use or to
the use of another person, anything whether animate or inanimate, with
intent,
(a) To deprive, temporarily or absolutely, the owner of it, or a person
who has a special property or interest in it, of the thing or of his
property or interest in it;
(b) To pledge it or deposit it as security;
(c) To part with it under a condition with respect to its return that a
person who parts with it may be unable to perform; 0r
(d) To deal with it in such a manner that it cannot be restored in the
condition in which it was at the time it was taken or converted.
Offences Against Property - Theft
322 (2) A person commits theft
when, with intent to steal
anything, he moves it or causes
it to move or be moved, or
begins to cause it to become
movable.
(3) A taking or conversion of
anything that may be
fraudulent notwithstanding
that it is effected without
secrecy or attempt at
concealment.
Offences Against Property - Theft
From this section in the code, we learn that theft takes place
whether an item of someone else’s property is taken
permanently or temporarily.
If an item is obtained legally, but
then is kept without the
permission of the owner, the
item has been stolen.
Ie: Janita is allowed to use
her mother’s car to go
shopping, but decides
to take it to a three-day
camping trip instead.
Is this theft?...
Offences Against Property - Theft
This illustrates what the courts called colour of right. Janita’s
initial action (taking the car) was legal, and she may have
believed that she had permission to use the car as long as she
wished. As long as she is operating on the sincere belief that
she has that permission (time frame and type of usage), there
is no criminal act.
However, if she knew
that the 3 day usage
and the camping usage
were not permitted,
she committed a theft.
Offences Against Property - Theft
It is also an offense to possess
any property that has been
stolen, if it is obtained by
someone committing an
offence. This is an area where
police have really been
clamping down on with
pawn shops.
If the property in possession is
worth more than $1000, the
maximum punishment for
the offence is two years
imprisonment.
Offences Against Property - Robbery
The offence of robbery is much like that of theft, except that
robbery also includes threats, violence, or weapons. Because
of these added elements, the maximum penalty for robbery
is life imprisonment.
Technically, according to
law, a kid that demands
another kid’s lunch money
“or else I’ll pound you,” is
committing robbery and
is subject life
imprisonment...
...if tried in an adult court.
Colour of Right – Case Study
R v Hemmerly (1976), 30 c.c.c. (2d) 141 (Ont. C.A.)
Hemmerly was charged with robbery after taking money from a
victim while threatening him with a gun. Hemmerly claimed
the victim owed him money from the sale of some drugs at an
earlier date. He therefore argued that he had the colour of right
over the money because it was owed to him. Is he right? If not...
Why not? .
The trial judge ruled against him, as did the court of appeal. The
judge stated that though he believed he had the colour of right
over the money, it was not valid because the money was owed
due to an illegal transaction. Though the defendant believed he
had a moral claim to the money, that does not constitute a
colour of right under the law. The conviction of robbery held.
Offences / Property – Break & Enter
Some items in society have special protection, and one of those is
the home. One of the reasons breaking and entering is treated
so seriously is because the burglar could enter the home while
the occupants are there, posing a danger to them... potentially
to the extreme. (ie: murder)
Historically, the belief
that people should be
safe in their own homes
is the basis for many
types of law, including
police procedure.
Offences / Property – Break & Enter
Some items in society have special protection, and one of those is
the home. One of the reasons breaking and entering is treated
so seriously is because the burglar could enter the home while
the occupants are there, posing a danger to them... potentially
to the extreme. (ie: murder)
Historically, the belief
that people should be
safe in their own homes
is the basis for many
types of law, including
police procedure.
Offences / Property – Break & Enter
There are two parts to the break and enter law. The first is to
break, which the criminal code defines in section 321 as:
321...
(a) To break any part, internal or external, or
(b) To open any thing that is used or intended to be used to close or to cover
an internal or external opening...
The second part is to enter
which the criminal code
defines as....
Offences / Property – Break & Enter
3501...
(a) A person enters as soon as any
part of his body or any part of an
instrument that he uses is within
any thing that is being entered;
and
(b) A person shall be deemed to have
broken and entered if
(i) he obtained entrance by a
threat or artifice or by collusion
with a person therein, or
(ii) he entered without lawful
justification or excuse, the proof of
which lies upon him, by a
permanent or temporary opening.
Offences / Property – Break & Enter
When a person illegally enters
someone else’s home, he or she
can be charged with unlawfully
being in a dwelling house. The
maximum sentence for this
offence is 10 years imprisonment.
Being in possession of instruments
that can be used to break and
enter is also an offence and
punishable by up to 10 years
imprisonment.
If you catch the burglar before he
can even attempt to break in...
But has that crowbar... Guilty!
Offences against Property – Mischief
Mischief is an offence that takes place when someone
deliberately damages or destroys another person’s property. It
can and does occur when people are reckless and destructive,
when tensions between individuals or groups are heightened
by a dispute, or when
people seek to undermine
the security of others or
organizations by damaging
or destroying something
belonging to them.
Mischief is defined in
the code...
Offences against Property – Mischief
430. (1) Every one commits mischief who wilfully
(a) destroys or damages property
(b) renders property dangerous, useless, inoperative, or ineffective;
(c) obstructs, interrupts, or interferes with the lawful use, enjoyment, or
operation of property; 0r
(d) obstructs, interrupts, or interferes with any person in the lawful use,
enjoyment, or operation of property.
Because of the vulnerability
of computer records that
are kept by banks and
government, this applies
especially to those who
would damage, alter, or
use this data.
Offences against Property – Mischief
The activities described here can vary greatly. Some examples
include spray-painting property with graffiti, destroying the
property of a neighbour or employer, and illegally accessing
and altering computer records.
Mischief is a hybrid offence because the variables can be so
broad. If the value
of the property
destroyed is
over $1000,
it is considered an
indictable offence
and punishable by
up to 10 years
in prison.
Offences against Property – Mischief
Interfering with, and destroying, computer records is also a
hybrid offence. However, where that tampering endangers
the life of another person (ie: medical records), the offence
is immediately indictable and punishable by up to 10 years
imprisonment.
Just so you know... Altering
your grades by hacking a
teacher’s computer is a
criminal offence, even if
they foolishly left it on
the screen.
Fraud
Fraud is defined as intentionally deceiving the public or a person so as
to cause loss to the person or the public.
In order to convict a person of fraud, one must prove that the person
knew they were deceiving.
Fraud can cover a wide range of activities:
- Obtaining credit via false statements.
- Knowingly writing an NSF cheque.
- Writing cheques on another person’s
account.
There are many
types of Fraud...
Fraud
- Lying about your age in order to qualify for something or
enlist in something.
- Attempting to sell an item by greatly exaggerating its value.
- Selling something that
does not belong to you.
Where the value of the item
concerned is more than
$1000, the offence is
indictable and punishable
by up to 10 years in prison.
Less than $1000 equals
a summary conviction.
She said she was young enough to ride...
Offences against Morality
Morality is a sense of right or
wrong (or good and bad) that a
society places on certain ideas or
activities by mutual consent.
Examples of these crimes include
gambling, prostitution, and
obscenity. Unlike many other
types of crimes, these change over
time, usually because a society no
longer views them as immoral.
These offences are often the subject
of debate in legislatures, courts,
and media... and likely will be
forever.
1930
1990
1980
1850
1915
1950
2000’s
Offences against Morality - Gambling
Gambling means to bet things of
value on a game of chance or risk.
Usually gambling activities are
recreational in nature, but they
can have devastating
consequences to those who
participate in them. In the same
way the people can become
addicted to drugs or alcohol, they
can be addicted to gambling.
Thus, for most of Canada’s
history, gambling has been illegal
or subjected to strict government
controls.
Offences against Morality - Gambling
Many provinces and cities have legalized gambling now, on a
limited scale. Activities are closely monitored by the
government to ensure games are “fair” and there is nothing
fraudulent taking place.
In most provinces, government-run lotteries are used to support
athletic, community, or cultural events.
Governments try to balance the income gambling brings in to
them, with the crime it creates.
Offences against Morality - Gambling
Because of the nature of gambling, it is frequently found in the
company of other offences against morality, such as
prostitution, drugs, and weapons.
Offences related to gambling include running an illegal
gambling house (punishable by up to 2 years)
to cheating while gambling.
As well, simply being
in an illegal
gambling house
is a summary
conviction
offence.
Offences against Morality - Gambling
Gambling pools and bookmaking are also illegal unless
specifically permitted by the government.
Gambling pools is a game of chance where several people bet on
the outcome of a particular event, such as a hockey
tournament. Though common, it is a criminal offence.
Bookmaking (being a
“Bookie”) means to
organize and place
bets for people in
an illegal manner, or
as an unlicensed agent.
Offences against Morality - Prostitution
Prostitution, or requiring
payment for a sex act, is not a
criminal offence except in
certain circumstances, such as
when the prostitute is under the
age of 18, or forced to work as a
prostitute.
Activities associated with this act
may be illegal though. In
addition, the transaction is
illegal in some circumstances.
Prostitution is illegal when the
prostitute’s actions in arranging
the transaction are “pressing
and persistent.”
Offences against Morality - Prostitution
This offence is called
communicating for the
purpose of prostitution, or
“soliciting.”
If another person assists the
prostitute or assists another
person buy the services of one,
then the assistance is a offence
known as procuring. The
definition of this covers
several activities, including
bringing people into a country
to be prostitutes, finding them
for people wanting their
services, and living off the
income of prostitution.
Video Link
Offences against Morality - Prostitution
Keeping a common bawdy house is an indictable offence in
Canada, with a maximum penalty of 2 years in prison. A
common bawdy house is a place where activities of prostitutes
are arranged and conducted
(ie: can be a set establishment
like a massage parlour, or
just someone’s house).
Even being in a house of this
nature, without lawful
excuse is a crime.
(ie: The cable guy would
not be arrested... you would).
Offences against Morality - Prostitution
A related offence is stopping a
vehicle or impeding the flow of
pedestrians on a street or near the
entrance to a building (as we saw
earlier)... If it is done for the
purpose of prostitution.
Many people consider prostitution
a “victimless crime” meaning
that since nobody is hurt by
the activity, no crime has been
committed. However, others
point out the health and safety
risks inherent in it (Aids etc.)...
Offences against Morality - Prostitution
... and the force or coercion that is
used to get, and keep, people in
the sex trade. Plus, there is a clear
link between prostitution and
illegal drugs, gambling, and
weapons.
Neighbourhoods that become
preferred places for prostitutes
also suffer in several ways:
- General increase in crime
- Price of homes and property
negatively affected
- Businesses in the area lose
customers
Offences against Morality - Prostitution
It has also been noted in the media
and in court documents that the
use of women and prostitutes
leads to a general perception in
society that these people are
somehow of lesser value and
worth. They are more expendable
than others. (ie: Pickton trial.
How long did it take anyone to
notice dozens of prostitutes had
vanished?)
Also, to limit or suppress the rights
of some because others want to
use them for personal enjoyment
means that the rights of all are
diminished.
Offences against Morality - Obscenity
Most Canadians believe that we have the rights to express
ourselves freely. We are guaranteed this in the Charter.
However, the right does have limits... Especially when applied
to obscenity. (Remember your video store case study?)
The criminal code,
section 163(8):
...any publication a dominant
characteristic of which is the
undue exploitation of sex,
or of sex and any of the
following subjects, namely
crime, horror, cruelty, and
violence.
Parties to an Offence
There are some instances where a person may not directly
participate in committing a criminal offence, but be considered
partly responsible for it nevertheless. Someone charged as a
party to an offence may be involved in offences against people,
property, or morality. All areas of the law can qualify.
People who assist in crimes can be involved in all sorts, so the
seriousness of it widely varies, as do the punishments.
Parties to an Offence
Section 21 of the criminal code:
21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the
purpose of aiding any person to commit
it; or,
(c) abets any person in committing it.
Under this definition (1)(a), the
person who does the crime is also
called the party to an offence,
meaning he/she has a criminal
responsibility for having done it.
Parties to an Offence
Section (1)(b) places the responsibility for committing the crime
on other people who might have aided the person principally
responsible for it. In this section, aiding means giving
assistance to the principal offender by doing something or
omitting to do something.
A similar offence occurs when
two or more people agree to
carry out a criminal act. Even
if no actions are taken to
actually do it, the crime
of conspiracy has occurred.
Parties to an Offence
The difference between aiding and conspiracy are that in aiding
the crime has to have actually taken place.
Under section 21(1)(c), to abet means to provide
encouragement or help to the main offender. Simply being at
the scene of the crime is not sufficient to charge a person with
either aiding or abetting.
Some action or lack of
action must exist, and
the party to the offence
must be aware that a
criminal act was
intended.
If you’re cheering them on... Is it Abetting?
Parties to an Offence
This can be very hard to clarify
when applied to real situations...
Suppose Janet decided to steal a
blouse from a store. If she were to
share her intentions with a friend
a day before the incident, would
the friend be aiding and abetting
if she did nothing to stop Janet,
and neither agreed or disagreed
with her intended actions? .
The answer is no. Mere knowledge of
the crime is not aiding and abetting.
Parties to an Offence
Suppose the friend had been told
about the intent, said nothing for
or against it, and happened to be
walking past the store just as
Janet walked out with the stolen
blouse under her coat. The friend
remembers what Janet said and
knows she has just stolen the
item. She says nothing though.
Has the friend aided and abetted in
this case? .
The answer is no. Presence on the
scene does not constitute aiding
and abetting.
Parties to an Offence
Suppose the friend smiled and
nodded encouragement to Janet
as Janet hid the blouse and
walked out the store with it.
Should we now be able to charge
her with aiding and abetting? .
The answer is still no. There is no
criminal act that has occurred on
the part of the friend.
Parties to an Offence
Suppose the friend kept the clerk
busy with questions about one of
the products in the store, while
Janet took the blouse and walked
out with it. Can we now be able to
charge her with aiding and
abetting? .
The answer is Yes! She has actively
aided in the crime.... Providing
she knew about it. If she was used
as a pawn without her knowledge,
she is not guilty.
Parties to an Offence
Suppose Janet stole the blouse, but was
seen by a security guard as she was
leaving the store. The guard called to
her and Janet fled the scene on foot,
with the guard in hot pursuit. As
Janet exits the mall, she sees a friend
driving by in her car. She flags down
the friend, jumps in the passenger
seat and tells her to drive because a
guard is chasing her over a stolen
blouse. If the friend lets her remain
in the car, and drives off, can we nail
her for that? .
The answer is Yes! She has actively
aided in the crime... after the fact.
Parties to an Offence
This last section is defined in section 23 of the criminal code,
and it is called being an accessory after the fact. Here,
you give comfort or assistance to a person so that he/she
can escape prosecution by the police.
However, strangely, assisting one’s spouse does not constitute
a crime of accessory after the fact.
Unit end….
Up next…. Defences….